Federal Court Decisions

 

Date: 20070130

Docket: T-305-06

Citation: 2007 FC 89

BETWEEN:

LINDA BARTLETT

Applicant

and

 

THE ATTORNEY GENERAL FOR CANADA

 

Respondent

 

 

 

REASONS FOR JUDGMENT

 

 

Pinard J.

 

 

[1]               This is an application for judicial review of a decision made on behalf of the Minister of Human Resources Development Canada (the “Minister”), dated January 19, 2006, determining that no erroneous or administrative error had occurred under subsection 66(4) of the Canada Pension Plan and Old Age Security Act, R.S.C. 1985. c. C-8 (the Act).

 

Facts

[2]               On December 29, 1977, Linda Bartlett, the applicant, applied for Canada Pension Plan disability benefits (“CPP benefits”).

[3]               When Mrs. Bartlett submitted her application, she was informed by Health and Welfare Canada (now Human Resources and Development Canada) (the “Department”) that she did not have enough contributions to qualify. Mrs. Bartlett insisted that she did.

 

[4]               In the spring of 1978, the Department contacted Mrs. Bartlett to see if she had any evidence of more contributions. She told them to contact the Department of National Revenue (DNR) to verify her contribution for 1973 as DNR had told her it had a record of her earnings for 1973. On April 11, 1978, a Request for Confirmation of Contributory Earnings and Contributions was filed on behalf of Mrs. Bartlett. This request was for a record of earnings for 1972 and there is a hand written note on the request stating that “All records called for 1972.”

 

[5]               In a letter dated May 29, 1978, the Department denied Mrs. Bartlett’s application. The letter stated that the applicant was not eligible because she did not meet the minimum qualifying period of valid contributions, which in her case required valid contributions to have been made in at least five of the last ten calendar years. According to the letter, the applicant had only made valid contributions for the years 1970, 1975, 1976 and 1977. Since she had not contributed five of the ten years from 1969 to 1978 her application was dismissed.

 

[6]               In October 2001, the applicant made a second application for CPP benefits that was denied in a letter dated November 7, 2001 on the basis that the applicant was ineligible because she did not meet the contributory requirements of the Canada Pension Plan (CPP).

[7]               The applicant requested reconsideration of the second decision and, on January 8, 2002, she was informed by the respondent that the decision denying her CPP benefits was confirmed.

 

[8]               The applicant decided to appeal the decision to the Review Tribunal. The Review Tribunal, in a decision dated December 27, 2002, held that there was insufficient evidence of valid contributions and, therefore, the issue of whether the applicant’s condition qualified as being severe and prolonged for the purposes of the CPP did not need to be considered.

 

[9]               In August 2003, the Department conducted an investigation that determined that the applicant had in fact made valid contributions in 1973.

 

[10]           The applicant appealed the decision of the Review Tribunal to a Pension Appeal Board (PAB). The PAB did not need to consider whether the applicant had met the minimum qualifying period for valid contributions since the respondent conceded that she had. In a decision dated June 22, 2004, the PAB held that the applicant was disabled with the meaning of the Act as of September 1980 and should, therefore, be granted a disability pension.

 

[11]           In August 2004, the applicant was granted a disability pension with a date of onset of July 2000, a maximum of 15 months retroactivity from the date of the applicant’s second disability application of October 2001.

 

[12]           In September 2004, the applicant wrote to the Department requesting a reconsideration of the amount of her monthly payment and the amount of retroactive payment. The applicant argued that she should have been granted CPP benefits in 1977 and she also states that she believed her CPP benefits should be calculated in 1977 dollars.

 

[13]           In a letter dated November 2, 2004, the applicant was informed that the decision regarding the amount of her disability benefits was confirmed. The letter also advised the applicant that based on her earnings and contributions, her disability pension amounts could not be increased as she was receiving the maximum amount permitted. It also noted that the onus or responsibility was on clients to provide missing information and documents and that “it was not until August 2003, that you advised our office of missing T4’s for the year 1973.” This letter included a breakdown of how the applicant’s CPP benefits were being calculated.

 

[14]           In a letter received by the Department on October 20, 2005 the applicant requested a review of her file under subsection 66(4) of the Act based on her belief that the amount of her retroactive payment and monthly payment was too low and that this was a result of a departmental error. She alleges that in 1977 the Department did not verify her contributions or part of her file was lost.

 

[15]           The Minister held that no erroneous advice or administrative error had occurred. The decision provided the following reasons:

• On December 19, 1977, you applied for CPP Disability Benefits. At the initial review of your application it was noted that you did not satisfy the legislative requirement by having sufficient earnings and contributions, therefore in April 1978, CPP requested an investigation by the Department of National Revenue (DNR). CPP asked DNR to investigate your 1972 contributions which were $246.00.
• DNR responded that your 1972 contributions were below the allowable basic exemption at the time ($600.00) and the contributions were refunded back to you. In addition, CPP also asked if there were any additional years of contributions but DNR did not find any.
• Our New Westminster District office also indicated that you had been counselled and informed that you had insufficient earnings and contributions prior to making your application in December 1977. You claimed to have additional earnings, but when you were asked again, in April 1978, you were unable to produce additional evidence to support your claim. The onus for providing additional evidence of these earnings in 1973 rested solely on you.
• Our review shows that CPP did in fact investigate your claim of having additional earnings and contributions into the Canada Pension Plan. When the Department of National Revenue could not find any additional earnings for 1973, your December 1977 application was denied.

 

 

 

Pertinent Legislation

 

[16]           Subsection 66(4) of the Act reads:

Analysis

 

[17]           In this case, the Court must decide whether the Minister’s decision that there was no administrative error was patently unreasonable.

 

[18]           The applicant submits that the Department made an administrative error by not verifying her 1973 contributions and that this resulted in her 1977 application for CPP benefits being turned down.

 

[19]           The respondent submits that the Minister appropriately reviewed all the evidence and did not discover any evidence that the requisite CPP contributions were available to or known by or could have been known by the Minister in 1977 or 1978. The respondent further submits that the burden to provide information regarding CCP contributions rests on the applicant and that it was the applicant’s failure to provide sufficient information which caused the Department to deny her disability benefits based on the determination that she had not made contributions for the minimum qualifying period.

[20]           In making the decision that no administrative error had occurred, the Minister had the following evidence before her:

• The applicant had lost her T4 for her employment at Swartz Studios in 1973. She claims that she was told in 1977/1978 by Revenue Canada and the Unemployment Insurance Office that they had records of her contributions from 1973. The applicant claimed that someone at Revenue Canada told her to have CPP contact them and the applicant then brought a letter to the New Westminster Pension office which requested that CPP contact Revenue Canada in order to receive verification of her 1973 earnings.
• The Department contacted the applicant in 1978 to see if she had found any information regarding her CPP contributions.
• In 1978, a record of earnings and contributions was requested on behalf of the applicant for the year 1972.
• The record of earnings summary dated May 23, 2003 indicated that the applicant’s earnings for the year 1973 were $0 and her CPP contributions were $1.58, while the record of earnings summary dated August 25, 2003 stated that the earnings for 1973 for were $756 and the CPP contributions were $5.10. A note to file written by Josee Plouffe, Program Analyst, dated August 27, 2003, states that “Client was denied on earnings since she did not have 5 years out of 10. Client claimed that she had missing T4s in 1973. An investigation was done by NIBS and as a result, the client had a T4 in 1973 in the system that could be matched to the client. Therefore the client has one more valid year to qualify her on earnings. The file still needs to be adjudicated medically.”

 

 

 

[21]           Based on this evidence, the Minister concluded that there had been no administrative error which had led to a denial of benefits because the Department and the DNR, through no fault of their own, did not have a proper record of the applicant’s income for 1973 in 1977/1978. In my view, the evidence does not support the Minister’s conclusion.

 

[22]           Rather, the evidence supports the conclusion that the Department failed to verify the applicant’s 1973 contributions in 1978. Two pieces of documentary evidence support this conclusion: the Request for Confirmation of Earnings and Contributions, dated April 1978, and the Note to File made in August 2003.

 

[23]           The applicant claims that in 1978, shortly after she submitted her first application for CPP benefits, she asked the Department to verify her 1973 contributions with Revenue Canada since she was aware the contributions which CPP did not have proof of were those she made through Swartz Studios in 1973. In response to her request, the Department filed a Request for Confirmation of Earnings and Contributions in April of 1978 with the DNR. This document clearly indicates that the request was for the year 1972 only. Making a request for the wrong year is an administrative error. In her decision, the Minister glosses over this error by stating that the Department asked DNR to check for contributions for 1972 but also asked them to check for contributions for other years. The respondent did not provide any evidence to support the Minister’s claim that the Department had asked the DNR to investigate contributions for years other than 1972.

 

[24]           The Note to File made in August 2003 indicates that an investigation was done by NIBS and that it revealed that the applicant had a T4 for 1973 “in the system”. This prima facie suggests that the applicant’s T4 for 1973 had been in the system all along but that it was not until August 2003 when a proper search for it was done that it was located. Both the Minister in the decision and the respondent in submissions failed to explain how the 1973 T4 turned up in 2003. As a result, the decision fails to squarely address the possibility that the Department had never actually attempted to verify the applicant’s contributions for 1973 until 2003 and that this was an administrative error.

 

[25]           The evidence before the Minister suggested that an administrative error had occurred and that as a result the applicant had been denied a benefit (or portion thereof) to which she would have been entitled under the Act. In my view, by failing to address this matter directly the decision is patently unreasonable.

 

[26]           Consequently, the application for judicial review is granted, the impugned decision is set aside and the matter is sent back to the Minister of Human Resources Development Canada for reconsideration in accordance with these Reasons.

 

 

“Yvon Pinard”

 

Ottawa, Ontario

January 30, 2007

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-305-06

 

STYLE OF CAUSE:                          LINDA BARTLETT v. THE ATTORNEY GENERAL FOR CANADA

 

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      January 17, 2007

 

REASONS FOR JUDGMENT:       Pinard J.

 

DATED:                                             January 30, 2007

 

 

 

APPEARANCES:

 

Mrs. Linda Bartlett                                           THE APPLICANT ON HER OWN BEHALF

 

Mr. James Gray                                                FOR THE RESPONDENT

 

 

 

SOLICITORS OF RECORD:

 

Mrs. Linda Bartlett                                           THE APPLICANT ON HER OWN BEHALF

Maple Ridge, British Columbia

 

John H. Sims, Q.C.                                          FOR THE RESPONDENT

Deputy Attorney General of Canada